IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CENTURION
CASE NO.: ELRC 167-23/24 GP
In the matter between:-

DEPARTMENT OF EDUCATION- GAUTENG EMPLOYER

AND

MLUNGISI STANLEY MABASA EMPLOYEE

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 09 February;05 April;20 May;12 July and 02 August
2024
Closing Arguments: 14 August 2024
Mitigating / Aggravating Factors: 14 August 2024
Date of Award: 23 August 2024
SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held physically at Brackenhurst Primary School and virtually respectively, on the 19 October 2023; 09 February;05 April; 20 May;12 July and 02 August 2024.

2. The employer was represented by Ms Noxolo Jiyane. The employee, Mr Mlungisi Stanley Mabasa was represented by Mr Thabo Monyatsi a SADTU union official. The proceedings were recorded digitally. The parties were directed to submit closing arguments, mitigating and aggravating factors by the 09 August 2024.The employer submitted their closing arguments on 14 August 2024. The employee failed to submit same.

ISSUE TO BE DECIDED
3. I am required to determine if the employee has committed a sexual assault offence against a learner as alleged by the Employer. If I find the employee guilty of the offence, I must determine the appropriate sanction.

ALLEGATIONS AGAINST THE EMPLOYEE
4. Mr employee pleaded not guilty to a count of misconduct levelled against him in
terms of Section18(1)(q) of the Employment of Educators Act, Act 76 of 1998 (as
amended) (EEA).

Allegation 1:

Conducting himself in an improper, disgraceful and unacceptable
manner in that while on duty, he grabbed grade 11 learner KM’s
buttocks/bums.

SUMMARY OF EVIDENCE AND ARGUMENT

The following issues are common cause between the parties:

4.1 Employee was employed as educator in January 2016. He is currently appointed on post level 1 at the school Mpontsheng Secondary School;

4.2 He was not teaching the alleged victim at the time of the alleged incident; He teaches grade 11 and 12. At the time of the alleged incident in 2023, KM was 17 years and was doing grade 10.

4.3 He was at school on the date of the incident. He was neither suspended nor on precautionary transfer.

5. The following issues are in dispute:
5.1 the employee denies grabbing the alleged victim by the buttocks;
5.2 the employee denies that the learner went into his office on the day in question.

6. On the 19 October 2023 the learner refused to testify, she was emotional and weeping. She indicated to the intermediary that she was not going to testify at any stage, even in the future. This development presented itself upon the employee arriving at the enquiry driving with her mother and aunt in his car.

7. I was informed that there was a scene when they arrived. The employee submitted that he brought the learner’s mother with him because she was his witness. The situation prompted the postponement of the proceedings. In the interest of justice, I evoked Section 142 of the Labour Relations Act 66 of 1995 (as amended) (“LRA”) and subpoenaed the learner. I was convinced that the learner might have been threatened or influenced by the situation at hand.

8. On 09 February 2024, KM testified that the incident occurred on 24 October 2022
at the school inside Employee’s office. She went to fetch water from the tap with
a bottle . On her way back, she met Employee by the stairs, who instructed
her to follow him to his office.

9. On their way to the employee’s office, he pretended to be taking a call near a
school camera . He was creating the impression that she was following him. He was holding reports inside the box. There were many learners around. He instructed her to wait for him as he was instructing the other learners to dispatch to their classrooms.

10. When they entered his office, the employee closed the door, grabbed her
inappropriately by her buttocks. Fearing he would rape her, she pushed him
away and ran to her class. She did not scream as she was shocked, confused and
upset. She was crying on her way back to the classroom. Her friends, PD, OM,
and KK realised that she was distressed.

11. She related the incident to them. They were shocked that the employee conducted
himself in that manner. PD was not surprised, she said that the employee had
previously passed inappropriate comments about her body.

12. On their way to report the incident to the principal, they saw the employee taking
the principal and other educators’ pictures. The principal was preoccupied with the
photoshoot and dismissed them. The employee signalled her to remain silent.

13. Ms. Mtshali, who witnessed their interaction, inquired about the situation and
later called the employee, who apologized for his actions. The employee claimed
he did not realize that he was doing anything wrong and appeared scared during
the conversation.

14. She reported the incident to her mother when she arrived home. The following day,
her mother and aunt reported the incident to the principal. She was called to the
office to view the camera footage with two deputy principals, principal, her parents
and employee. The footage showed her following the employee up the stairs till
close to his office. Her mother was angry and viewed the employee as a predator
who targeted learners.

15. In reference to page E8 which is the employee’s affidavit, she said he came to her
class to request her mother’s contact details and address. She gave it to him. She
did not know that she was not supposed to speak to him. She informed the principal
that he had asked for her mother’s contact information. The principal informed her
that she was not supposed to give him her mother’s contact information and that he
had informed the employee not to have contact with her.

16. On page E 2 and 3, the employee approached her and her friend at the feeding
scheme on the 18 October 2023. He asked for her mother’s contacts. Every time he
came to her class, he would ask her to drop the case. In the audio he is heard
promising to do everything for her, including to promote her to the next grade if she
dropped the case. He further offered to make her pass her travel and tourism
subject with 200 marks by giving her memorandum and past question papers. He
promised to give them the scope for the exams.

17. She decided to record their conversation when he realized that his
plea to her to the drop the case was persistent. He is heard on the audio telling her
not to say/speak anything. He asked her not to attend the hearing which was
scheduled for the following day on 9 October 2023. He promised to do everything
for her and her mother. She promised him that she would not attend.

18. She denied that she voluntarily followed him and that he had chased her to go to
the classroom. She denied that she offered him her mother’s contact details with
the intention of soliciting a bribe. He was not supposed to pick up her mother and
drive with her to the hearing. She did not know what they discussed in his car on
the way to the hearing. She denied that she was testifying against him out of anger
as he refused to take their bribe. She knows nothing about the bribe.

19. During cross examination when referred to page D9 of the employer’s bundle (her
statement), she conceded that she lied to her mother that the employee was
following her, yet she was the one who was following him. She lied because her
mother and others were shouting at her and forcing her to speak when she was
uncomfortable and not ready to speak. They were all screaming at her.

20. The footage showed her following the employee. She denied that she turned around
when he was speaking with Ms Manganyi. She stood next to them, when he was
done with Ms Manganyi, she went with him to his office. The truth is that the
employee grabbed her buttocks in his office.

21. After the incident he persistently asked her to drop the case. She would agree to
drop it. She always made sure that she was with someone when she met him. She
was also with KK on the 18 October 2023 when she recorded him.

22. On the audio, he asked her not to attend the case the following day on 19 October
2023. He promised to do everything for her and her mother and would ensure
she passed travel and tourism subject.

23. In the office she entered first, he followed and put the box with reports on the table
and closed the door. He asked her if she passed as she had just received her report
and grabbed her buttocks. She did not scream because she was scared and
confused.

24. Her mother threatened to beat her because she lied that the employee was
following her, whereas the footage showed her following him. The principal and
the deputy principal screamed at her when the footage showed her following
him.

25. She had no knowledge that her mother and aunt were coming with him to the
hearing on 19 October 2023. She was not aware that her was mother was going
to be his witness and the basis was that she lied about him.

26. He found her at the stairs and instructed her to follow him to his office. He
pretended to be receiving a call, while in the footage his phone did not ring,
when they moved past the camera, he put it back in his pocket.

27. There is only one recording in her mother’s phone. She recorded him on 18
October 2023, a day before the hearing. He gave them the promised scope.

28. OM testified that she was 17 years in grade 11 at the time of the incident in 2022.
She passed grade 12 in 2023. She was with her friends PD, KK
when MK returned to the class. They realized that KM was crying, as friends
they probed why she was crying. She was emotional and continued crying.

29. She informed them that the employee grabbed her buttocks in his office. She
asked them how was her body that made the employee to harass her sexually.
They told her that there was nothing wrong with her body. PD told KM that the
employee had previously commented about her thighs and bums.

30. They confronted the employee about what he had done to KM. He was frightened
and stammering. He indicated that he pushed KM to go back to the class and
apologized for what he did. She believed KM, because she was crying and
disturbed about the incident. Furthermore, KM was not a person who would want
to destroy her teacher.

31. During cross examination she said KM told them that she had recorded the
employee when he asked her to drop the case in exchange for money. She
encouraged KM to tell her mother not other teachers because they would defend
him.

32. Mlungisi Stanley Mabasa testified that on the day in question, he interacted with
KM when he saw her carrying a water bottle. He instructed her to go to class.
When she refused, he pushed her by her neck /shoulder area to go to the class.

33. KM continued following him. On the way to the office, he met and spoke with Mr
Rikhotso upstairs. KM waited for him to finish and followed him. She tried to speak
to him but he ignored her. When he reached his office Ms Manganyi was standing
by her door. As he spoke with Ms Manganyi, KM disappeared. KM did not enter
his office. He did not touch her buttocks.

34. When Ms Mtshali approached him about the allegations, he related what
transpired. The following day OK and other two learners approached him and told
him that KM had reported that he touched her buttocks. He told them that if it
happened it could be by accident and apologized that if he did anything wrong he
was sorry.

35. He was called to the principal’s office the following day. Present in the meeting were
the principal, KM, her parents and two deputy principals Ms Twala and Ms Rikhotso.
They viewed the CCTV Footage which showed KM following him up the stairs. Her
parents shouted at her upon seeing the opposite of what she told them. The learner
had told them that he was following the learner, whereas in the footage the learner
was following him.

36. He denied touching the learner’s buttocks. He had a teacher-learner relationship
and even after the incident he continued teaching the learner. KM informed him
that her mother was requesting him to call her.

37. On 18 October 2023, he was in the feeding scheme when five learners asked
for the scope. He promised to give them the scope as he usually does before
leaving for marking. He was not referring to KM as she was performing very well in
that subject. He was referring to KK as she was struggling.KM approached him
saying her mother wanted to speak with him on her phone. She gave him her
mother’s phone numbers. She did not call her mother that same day.

38. On the hearing day, on 19 0ctober 2023, KM ran to him saying her mother
wanted to speak with her on the phone. She gave him directions to their home.
He also used navigation to go to KM’s house. When he arrived, her mother told
him that if he came earlier, the case could have been dropped long time ago.

39. He fetched her mother and aunt to attend the enquiry. KM’s mother told
him that she was attending the hearing to testify in his favour as the charges
were frivolous. She further told him that she had spoken to KM’s uncle about the
matter and the uncle proposed to drop the case, he must pay R5000.00. She told
him she would accept a minimum of R4000.

40. When he told her that he did not have the money, she threatened to share the
audio recording with the employer’s representative. He deposed to an extortion
affidavit at the Dawn Park Police Station on the 20 October 2024 (Bundle E).

41. During cross examination he denied going to his office with KM and grabbing her
buttocks. He denied that he was carrying a box. He was carrying an envelope
and a phone. KM went to her class, and for a few minutes she came running
after him. He pushed her by her arm/shoulder to go to the class.

42. He denied that he pretended to be speaking on the phone with the intention of
avoiding the camera. He would not know if the cameras were working or if there
was loadshedding. He did not check the position of the camera. KM never entered
his office. He never spoke with her.

43. He apologized to the learners because he learnt that KM was not comfortable
with the way he touched her, when he instructed her to go to the classroom. He
told them that he was sorry if he had offended her. He told Ms Mtshali that he
did not do anything to KM.

44. He denied having conversations with KM about the case. He spoke to her once
when KM approached him that her mother was requesting his contact numbers.
She told him that her mother wanted to speak with him. He could not have
communicated with KM as doing so could have implicated him further. The
employer’s representative had already warned him not to have contact or
communicate with KM.

45. When KM made a recording, she came with her friend to request travel and
tourism scope. He was referring to the group when he promised them scope.
He told them to study hard to pass and that he was going to do everything to assist
her to pass. He denied that he asked KM not to go to the hearing the following day.

46. When asked what he meant by “don’t go there tomorrow, I am going to do
everything for you”. He was referring to KK not KM. He was not referring to the
case. KM offered her mother’s phone numbers on 18 October 2022.He called
her mother only to arrange transport for the hearing. That was when she
blackmailed him.

47. He denied that he arranged KM’s mother to testify against her. He denied that he
agreed with the mother to prevent KM from testifying. When he deposed to the
affidavit, he was not aware of the contents of the recording. When referred to his
affidavit on E3 that he was aware of the recording, he conceded that the mother
had threatened to share the recording with Ms Jiyane if he did not pay. The
recording was not presented yet.

48. He conceded that he agreed with KM that he would do everything to ensure the
case is dropped as he was already tired. The reason he did not pay
the bribe was because he could not afford the amount they were demanding. He
denied influencing KM and her mother to drop the case. He told them that he would
rather face the music because the money they were demanding was too much. He
did not touch KM’s buttocks.

49. Hlenganani July Rikhotso testified that he had been the deputy principal of the
school since 2019. They were called to the principal’s office a day after the
incident to view CCTV footage. The employee and KM appeared on the footage
moving up the stairs. KM was following Employee who at some point appeared
to be receiving a call and answering his cell phone.

50. The footage did not show where the employee and KM ended. The footage did
not cover the whole staircase up to the employee’s office. There was no camera
in the employee’s office. Since the touching allegedly happened inside the office
he could not confirm or deny that the employee touched KM’s buttocks. The
footage stays for three months. It is no longer available.

51. KM’s mother upon seeing that she was following the employee on the footage
threatened to assault her for lying to her that employee was following her. KM’s
mother threatened to drop the case because KM lied to her.

52. During cross examination he said that the way Employee was walking did not look
like he was aware KM was following him. He denied speaking with Mabasa when
he passed him because Employee was on the phone. He saw Mabasa standing
with Ms Manganyi, at that point KM turned back. She did not go in Mabasa’s office.
The footage did not cover the staircase up to Employee’s office.

53. They did not backup and save the footage despite knowing that the case was
escalated to the Department on 25 October 2022. He conceded that they ought to
have kept the data. They did not backup the data because they thought it would be
available any time they needed it.

54. S.A.M testified that she is KM’s mother. On the day of the incident, KM arrived
home showing that she had been crying. She told her that Employee instructed
her to go with him to his office. He followed her to the office. When they got inside
his office, he grabbed her buttocks.

55. She was furious that the educator would do such a thing to her daughter
because they were sending children to be taught at school not to be harassed.
The following day she went with her sister to report the incident to the principal. The
principal called Employee and two deputy principals.

56. They viewed the footage. KM appeared on the footage ascending the stairs
following Employee. The footage did not show where they ended. The footage
also did not cover the whole staircase to the level where Employee’s office.

57. She shouted at KM for telling her lies that Employee was following her whereas
in the footage she was the one who was following him. Employee denied that he
touched KM’s buttocks in his office. He said he pushed her to go back to her class
and he apologized that KM felt uncomfortable to the level of crying.

58. She only spoke to Employee when she instructed KM to give him a phone. She
was asking him the hearing venue. She asked him to fetch her and her sister
from home for the hearing. On their way to the hearing, she received a call from
her brother (KM’s uncle). She put him on speaker because she could not hear
him properly inside the moving car.

59. She and KM’s uncle never solicited money from the employee. When she
informed her brother that they were on their way to attend the case, the uncle
said Employee must pay “inhlawulo” (damages). She was not even aware that
Employee was listening to their conversation. Employee was just making up
the story because he wants to blame other people for his wrong actions.

60. During cross examination she said the footage showed Mr Mabaso observing if
the camera was capturing.KM reported to her that Mr Mabaso grabbed her
buttocks in his office. The camera was showing the other side. The footage does
not show where they ended. The employee apologized in the meeting.KM was
crying and looked traumatised. She understood the apology was for grabbing her
buttocks.

61. In the audio, he is heard telling KM that, tomorrow she should not go to the hearing
and that he would do everything for her. He denied having a meeting with Mr
Mabaso and his brother. She denied that she and his brother asked the employee
to pay R5000 in exchange for dropping the case. The only time she was with him
was in the car travelling to and from the hearing.

62. On E2 ( employee’s affidavit), she denied asking KM to get the employee’s
numbers. She asked KM to give her phone to Employee to ask for the venue of
the hearing. E3 shows that Employee is guilty but was shielding himself. On E4 he
admits committing the offence E5.

63. The employee overheard her telephonic conversation with her brother. On E6, her
phone was on speaker when they were in Mabasa’s car. On E7, he dropped them
at home after the hearing. On E8,she denied soliciting money from him.

64. Ntombizakhola Thwala was a deputy principal at the time. They were called to the
office to view the CCTV footage.KM was walking behind the employee who was on
the phone. She was carrying a bottle not a box as she said. Not sure if there were
other learners. The coverage ended about two doors before his office.

65. In the meeting the mother admitted that KM told her that she was holding a box
and she was walking in front of the employee. On the footage she was following
the employee and holding a water bottle. She did not check if there was a camera
which could have captured up to the entrance to the employee’s office.

Closing Arguments

66. The employer’s representative argued that the footage showed the employee
going up the stairs with KM following him. The camera for some reasons did not
show where they ended. Employee knew that there was no camera in his office
and therefore, no evidence that he grabbed KM’s buttocks.

67. In most cases of sexual assault or harassment, a perpetrator strategically isolates
the victim and that is exactly what he did. In such cases they rely on the demeanor
of the victim described by the first person which the victim disclosed to the act of
sexual assault/harassment. OM who was among the first people that KM related the
story of the sexual assault/harassment to.

68. Her description was that KM came to the class crying and as friends saw something
was wrong with her. They enquired what had happened. They went out of the class
to relate the story privately. KM asked them how her body was for employee to do
such a thing to her.

69. Her mother corroborated this version that KM came home showing she had been
crying. Her demeanor prompted her to immediately ask what happened to her. The
employee did not show any remorse and saw nothing wrong in his action. If indeed
KM’s parents solicited money from him to save his job, why did he not pay the bribe
to save his bread and butter.

70. It should be accepted that the applicant had hugged and squeezed the complainant
in an unwelcomed manner, which conduct had morphed into sexual conduct. In this
regard, the applicant’s hugs were not innocent, and the complainant’s version of
events was corroborated by her friend ‘KM’ and was thus acceptable. This contrasted
with the applicant’s version which was not corroborated.

ANALYSIS OF EVIDENCE AND ARGUMENTS

71. In determining whether the employee is guilty of the offence proffered against him I
am obliged consider if the following elements are present: –
• if his conduct was of a sexual nature;
• if his actions resulted in the victims’ sexual integrity being impaired or inspiring the belief that it will be impaired.
• If his actions were intentional
• whether there are no justifiable grounds for his actions.
72. It is common cause that the incomplete video footage showing KM and employee
was not available at the time of the enquiry. The school management failed to
backup, save and store the footage safely. It is concerning that the incident was
reported to the principal the following day and they viewed the footage. The incident
was reported to the District Office shortly thereafter.

73. It was the responsibility of the principal and his deputies to save and backup the
footage as an exhibit for the department. Failure by the school to safeguard this
crucial evidence is tantamount to denial of justice. There is no explanation why the
footage did not have coverage up to the entrance of Mabasa `s office. It ended
halfway.

74. KM contends that the employee grabbed her buttocks behind the closed doors of
his office. The employee denies that KM entered his office. It is common testimony
of all witness (KM, her mother, employee and the deputy principals) who viewed the
footage that KM was following the employee. It is not the other way round as KM
had earlier related to her mother. It is also common cause that KM was seen
holding a bottle not the box as she testified.

75. I accept that KM `s testimony is tarnished with fabrication to the extent that she
said employee was following him and that she was carrying a box of reports. This
does not justify rejection of her entire testimony outright on the ground that it all is
lies. I must weigh the entire evidence presented collectively on the balance of
probabilities to reach a conclusion that it is credible and reliable.

76. There are no eyewitnesses who saw KM and employee in his office and what took
place behind the door. I will rely on circumstantial evidence to determine on the
balance of probabilities if he had committed the offence. KK corroborated KM`s
testimony that she came back to the class crying and disturbed. She related to them
that employee had instructed her to go to his office. In the office he grabbed her
buttocks. She able to escape and ran out.

77. KM’s friends confronted employee about the incident. According to OM, the
employee apologized for what he did. There is no plausible explanation why KM
would lie that she was sexually assaulted, pretended to be crying and report it to
her mother. The absence of motive to lie is not sufficient to him pin down. However,
it is necessary to corroborate other factors and versions.

78. I have put considerable weight on the suspicious conduct of employee from the
point the incident was reported up to this enquiry. There is an overwhelming
evidence linking his conduct and what probably happened on the day of the incident.
I find him not to be a credible and reliable witness. His version at the enquiry is
contradictory and also contradicts what he mentioned in the audio.

79. The employee did not only interfere with the witnesses, but he was engaged in
the negotiation extortion to get the case disappear. He did so brazenly with full
knowledge and awareness that his action would implicate him. In his own version,
Ms Jiyane the employer representative, had warned him against interfering with the
learner and the other witnesses.

80. Employee is heard on the audio saying “do not go there tomorrow” and telling KM to
not say anything. It is common cause that the conversation took place on 18 October
2023 a day before this enquiring which was scheduled for 19 October 2024. It is
disingenuous of him to contend that he was referring to KK. There is no evidence
which links his utterance to KK. The overwhelming link is that on the day of the
enquiry, KM vehemently refused to testify. She was crying and overwhelmed with
emotions.

81 I postponed the enquiry on account of KM’s refusal to testify. She indicated to
the intermediary that she was not willing to do testify in the future. I find it
probable that her refusal to testify was meant to execute his instruction to
remain silent. If he was clean in the scheme of things, why would he entice
the learner that he would take good care of her in exchange for her silence. She
testified 3 months later following a subpoena.

82. KM`s refusal did not only stem from what he told her on the audio the previous
day. The employee arrived at the enquiry driving her mother and aunt in his car.
According to employee, KM’s mother was his witness. Employee on the audio
offered KM to give them scope to pass and that he would ensure she is promoted
to the next grade.

83. KM’s explanation for deciding to record their conversation because he persistently
asking her to drop the case is plausible. It rebuts his denial that he never discussed
the case with him. KM could not have sniffed out that he was going to make such
enticing utterances. The conversation captured on the audio was not a coincidence.
She knew from his usual conduct that the conversation was likely to take place.

84. It is strange for a parent whose daughter has been sexually violated to seek
assistance and find comfort and joy in the alleged perpetrator’s car. If she did not
know the hearing venue, she could have asked the principal. The only inference I
could draw from this peculiar conduct is that the purpose was for the employee and
the mother to negotiate a bribe. KM’s mother corroborated the employee’s version
that she discussed the R5000.00 payment of money with her brother on the way to
the hearing.

85.He conceded that he wanted the case to disappear as according to him he was tired. In his own version he could not afford the R5000 and the R4000 which was demanded to drop the case. What I find more probable than his contention that he could not afford the price, is that they sealed a deal on the way. He either paid the money in part or agreed to pay it soon. That is why KM refused to testify because of their threats and the mother was willing to testify in his favour.

86.KM’s mother is not telling the truth that employee overheard her telephonic conversation with her brother which was on the speaker. The truth is that employee, KN’s mother and uncle participated in that deal negotiation meeting. This is corroborated by the events that took place in the hearing. The only inference I could draw from his dodgy conduct is that all his efforts were aimed at destroying the case before it saw the light of day.

87. The circumstantial evidence proves that Employee’s conduct was of a sexual nature; his actions resulted in KM’s sexual integrity being impaired or inspiring the belief that it will be impaired, his actions were intentional to satisfy his lust and justifiable. Therefore, the employer has discharged its onus in proving on a balance of probabilities that that employee committed the charged offence. I find him guilty of contravening Section 18(1)(q) of the EEA.

SANCTION
88. The employer, other than mentioning that Employee was not remorseful, did not aggravate further. The employee did not deem it necessary to mitigate the sanction despite being afforded such an opportunity. Perhaps it is an indication that he did not care about the outcome.
89.Dismissal in terms of Section 18(1)(q) of the EEA is not a mandatory dismissal. However, sexual misconduct against school children and adolescents is a serious offence. He abused his position as educator and in loco parentis. The community at large had entrusted him as an educator to care and protect learners. However, he destroyed that trust relationship. KM expected care and protection from her educator instead he was a predator.

90.In Le Roux v S (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021) the court
held that “The interests of the community cannot be ignored in determining an
appropriate sentence. Some of the components of the offences occurred on the
premises of a primary school. It is also necessary to continue to impress upon
people in positions of responsibility that they cannot leverage their power, and
the esteem with which they may be regarded, to satisfy their sexual lust”.

91. He was not remorseful for his appalling conduct. He continued with his tricks to conceal this disgraceful conduct by not only enticing the learner to drop the case but also engaging with the learner’s mother to buy his way out. This is tantamount to trading with the dignity of the poor learner. I find that dismissal is the only appropriate sanction.

FINDING
92. The employee is found guilty of the charge levelled against him.

93. I find that the employee is unsuitable to work with children. I invoke Section
120(4) of the Children’s Act No 38 of 2005 to declare him mero moto
unsuitable to work with children.

94.The General Secretary of the ELRC must, in terms of Section 122(1) of
the Children’s Act No 38 of 2005, notify the Director General: Department
of Social Development in writing of the findings of this forum made in terms of Section 120 (4) of the Children’s Act No 38 of 2005, that the employee is unsuitable to work with children and for the Director General to enter his name in Part B of the National Child Protection Register.

95. The attention of SACE is drawn to the fact that the employee has sexually abused an adolescent learner.

Signed and dated at Pretoria on this 23 August 2024.

MG Rabyanyana
ELRC Panelist